You have asked: Where trustees of a protective trust have been given power to pay capital to the primary beneficiary, and the beneficiary has a £75,000 debt to the estate, can the trustees pay capital from the share of the estate going into the trust to repay the beneficiary's debt? Section 33 of the Trustee Act 1925 (TA 1925) provides that where any income, including an annuity or other periodical income payment is directed to be held on protective trusts for the benefit of any person ('the principal beneficiary') for the period of their life or such lesser period, then during that trust period, the income is held on trust for the principal beneficiary. A protective trust is designed to protect the beneficiary, rather than the trust or its assets, and gives the

Under section 9 of the Mental Capacity Act 2005 (MCA 2005), attorneys acting under a Lasting Power of Attorney (LPA) are provided with the authority to make decisions on behalf of the donor in relation to their property and affairs, subject to any conditions or restrictions imposed by the donor in the LPA. The MCA 2005 Code of Practice at para 7.36 provides as one of the examples of decisions that the attorneys may make as including buying or selling property. Unless the LPA provides otherwise, attorneys may therefore sell the donor’s property without requiring the authority of the Court of Protection under the MCA 2005, s 18(1)(b), unless the property is the subject of a specific gift in the donor’s will (see Commentary: Chapter 13 The Scope of the Attorney's Authority Under a Lasting Power: Cretney and Lush on Lasting and Enduring Powers of Attorney). Where

This Q&A is limited to cover the situation where neither A nor B (nor anyone else apart from the testator) had an existing interest in the property prior to the testator’s death (ie no interest other than under the will). This Q&A examines whether an exclusion order could be granted against A over the residential property. Vesting of property Under section 1 of the Administration of Estates Act 1925 (AEA 1925), real estate to which a deceased person had an interest devolves on his personal representatives (PRs). This means that the deceased’s property will vest in his PRs until the estate is distributed. If executors are appointed in the testator’s will, then the property vests in them from the date of death. Otherwise the property vests from the date of grant of letters of administration. PRs’ duties The duties of PRs are set

Section 18 of the Wills Act 1837 (WA 1837) provides that where a person who has made a Will marries, that Will is revoked by operation of law save in specified circumstances. By WA 1837, s 18(3), where it appears from a Will that at the time it was made the testator was expecting to be married to a particular person and that they intended that the Will should not be revoked by the marriage, a marriage to that person will not revoke the Will. By WA 1837, s 18(4), where the testator expected to be married to a particular

Cohabitants setting out their intentions in relation to property and assets post-separation may enter into a deed of separation (see Precedent: Cohabitants—deed of separation). These are often used by cohabitants to set out a plan of action for the future. A deed is a specific type of contract. In order for a document to be a deed the following formalities must be met (per section 1 of the Law of Property (Miscellaneous Provisions) Act 1989): • it must be in writing • it must be clear on the face of it that the document is a deed, for example if the document described itself as a deed • the deed

CPR 20.2(2)(a) defines an additional claim as any claim other than the claim by the claimant against the defendant. It follows that a counterclaim made by a defendant against the claimant under CPR 20.4 is a type of additional claim. See Definition of additional claims: Atkin’s

For information on the formalities for an attorney executing a deed on behalf of a company, we direct you to the following Q&As: • What are the formalities for an attorney executing a deed on behalf of a company?

It is not clear from the question whether the net distributable estate is sufficient to be divided in two with the real property falling neatly in one half or not. If it is, then it will ordinarily be a simple matter for the executors to appropriate the property to A and then distribute the rest of the estate accordingly such that B receives assets (liquidated as required) up to the same value with the final residue divided equally between them. The Will should be reviewed to see if the executors' common law and statutory power of appropriation under section 41 of the Administration of Estates Act 1925 has been extended or amended. See Practice Note: Personal representatives and trustees—power of appropriation. However,

The usual position on the death of an administrator after the grant has been issued would be that the surviving administrator(s) would continue to administer the original estate and deal with the necessary formalities for assenting or otherwise transferring assets. (Note that the position on the death of a sole

Unlike a trustee, once a grant of representation has been issued a personal representative, whether an executor or an administrator, cannot retire from that office without an order of the court. This is done by an application to the court to exercise its power under section 50 of the Administration of Justice Act 1985 to replace or remove a personal representative. See Practice Note: Removal, renunciation and retirement of personal representatives. We refer you to the following content to assist you

Case study Two individuals have jointly instructed a solicitor to act in the purchase of a property. The parties are now separately represented and one is bringing a Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) claim against the other. One of the parties wishes to know whether each individual is entitled to require the solicitor to provide a copy of the conveyancing file. See the case of Hamilton and Dixon Group Sipp v Hastings and Company (Solicitors). The case considers a party’s entitlement to view documents held by a solicitor where the same was acting under a joint retainer. Deeny J followed the position expressed by The Law Society of England, and held: '… Each client is entitled to a copy of the relevant documents at

For the purposes of this Q&A we have assumed that the legal and beneficial owners of the land are the same. Where one or more of the owners of the land will not agree to a sale which another desires, the owner who desires the sale can apply to Court pursuant to section 14 of the Trusts of Land and Appointment of Trustees Act (TOLATA 1996) for an order of sale. TOLATA 1996 does not only apply to cohabitants or residential properties. It does not matter that the land is barren and not built on. The